February 26, 1996
The Honorable Toby Goodman
Chair
Committee on Juvenile Justice
and Family Issues
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910
Letter Opinion No. 96-014
Re: Status of the mayor and a council
member of the City of Fort Worth who
have resigned to run for another
office (ID# 38543)
Dear Representative Goodman:
You have requested our opinion regarding the status of the mayor and a council
member of the City of Fort Worth, each of whom has resigned to run for another office.
You indicate that in December, 1995, Mayor Kay Granger and council member
Kenneth Barr both announced that they were candidates for other offices. Under the
terms of the Charter of the City of Fort Worth, each of them were then deemed to have
immediately vacated his or her first office:
If a member of the council shall become a candidate for nomination
or election to any public office, other than that of councilperson,
he/she shall immediately forfeit his place in the council; and any
appointive officer or employee of the city who shall become a
candidate for nomination or election to any public office shall
immediately forfeit the office or employment held under the city.
FORT WORTH, TEX., CHARTER, ch. III, § 8, reprinted in CODE OF THE CITY OF FORT
WORTH (Municipal Code Corporation 1986) (footnote added).
On the other hand, article XVI, section 17, Texas Constitution, provides that “[a]ll
officers within this State shall continue to perform the duties of their offices until their
successors have qualified.” We have very recently said that this “holdover” requirement
prevails over another constitutional provision, article XVI, section 65, that deems an
announcement of one’s candidacy for another office under certain circumstances to effect
an automatic vacation of the first office. Attorney General Opinion DM-377 (1996) at 5.
It is obvious that the “holdover” provision of article XVI, section 17, overrides any
charter presumption of automatic vacation. With this background in mind, we now
consider the specific situations you present.
In the case of a council member, chapter III, section 4 of the charter prescribes
that a vacancy “shall be filled by special election.” In that instance, the council member
must be deemed to continue to hold his or her office until such special election has
occurred and a replacement has been elected and qualified. In the case of the mayor,
however, chapter III, section 4 declares that “[s]hould a vacancy occur in the office of
mayor, the mayor pro tem shall serve until a special election shall be called under the
rules pertaining to filling vacancies among the other councilmembers.” Thus, under the
terms of the charter, there is no “vacancy” in the office of mayor: the mayor pro tem
instantly assumes the office of mayor. As a result, the mayor will “hold over” by virtue
of article XVI, section 17, only until the mayor pro tem “qualifies” for the office of
mayor, presumably, that is, immediately.
S U M M A R Y
Under the terms of the charter, a council member of the city of
Fort Worth immediately vacates his office as soon as he or she
“becomes a candidate” for another office, but article XVI, section
17, Texas Constitution, deems the council member to “hold over”
until his or her successor “shall be duly qualified,” that is,
subsequent to a special election as provided in the charter. The
charter also provides that, pending a special election, a vacancy in
the office of mayor shall be immediately filled by the mayor pro tem.
Thus, the mayor holds over only until the mayor pro tem has
qualified for the office of mayor.
Yours very truly,
Rick Gilpin
Deputy Chief
Opinion Committee
We presume for purposes of this opinion that, under the charter, the mayor is a member of the
council.
The Honorable Toby Goodman - Page 2 (LO96-014)